Whiteley v. Mills
| Decision Date | 11 November 1947 |
| Docket Number | 47080. |
| Citation | 29 N.W.2d 541,239 Iowa 80 |
| Parties | WHITELEY v. MILLS et al. |
| Court | Iowa Supreme Court |
Rehearing Denied Jan. 16, 1948.
Ralph H. Munro, of Fairfield, for appellant.
Bradshaw Fowler, Proctor & Fairgrave, of Des Moines, and McBeth & Stong, of Keosauqua, for appellees.
Joseph Giles Whiteley and his brother, Phil S. Whiteley, were the owners of various tracts of real estate. Joseph Giles Whiteley was the husband of Emma Hall Whiteley, and they had two sons Joseph Hall Whiteley, the plaintiff in this action, and Phillip Wade Whiteley.
By the will of Joseph Giles Whiteley, dated December 2o, 1935, and admitted to probate in Van Bureau county on the 24th of October, 1938, the undivided one-half of said real estate and all personal property of which the testator was seized, were devised to Emma Hall Whiteley, testator's wife, and Joseph Hall Whiteley and Philip Wade Whiteley, his sons, in equal shares. The will appointed testator's son, Joseph Hall Whiteley, 'administrator' with bond. On declination of the executor named, Phil S. Whiteley the brother of testator, was appointed administrator with will annexed, duly qualified, and was given permission by the court to continue the mercantile business in which he and the testator had been engaged.
Later, on July 13, 1939, a petition of the widow alleged that the estate was not subject to inheritance tax, that the preliminary report showed a gross of $8,615.51 with an estimated indebtedness of $5,100, a net estate of approximately $3,500. In addition, she alleged that there was in the hands of Oscar Brewster, guardian, a fund derived from insurance and sale of household goods in the amount of $1,233.21. According to this application the guardian was authorized to pay sums due on living expenses and funeral expenses charged against the estate, and she asked an allowance of $800 in addition to $200 paid her by the guardian. To this application both of the sons, Joseph Hall Whiteley and Phillip Wade Whiteley, consented, and the allowance made.
The probate inventory shows, as alleged, that the total estimated value of real estate and personal property is $8,615.51, with one-half of the mortgage indebtedness of $8,200, or $4,100. Other debts estimated $1,000, and perhaps a little more, and the net estimated value of the estate as $5,100.
On August 8, 1939, Phil S. Whiteley, the uncle of plaintiff and partner of the decedent, resigned, and in pursuance of an order fixing the time and place of hearing and prescribing notice, filed his final report, which was approved and he was discharged; and on August 9, 1939, Madge J. Buckles was appointed administratrix de bonis non with will annexed to succeed said Phil S. Whiteley. She will hereafter be referred to as the administratrix. Inventory was filed showing the same property as heretofore mentioned.
On August 11, 1939, the administratrix filed an application to sell real estate to pay debts. In this application she asked authority to sell real estate and alleged that the personal and real property of the estate was not sufficient to pay the debts owing by said estate, being principally partnership debts, and alleged that the administratrix had consulted with Joseph Hall Whiteley who had talked with his brother, Phillip Wade Whiteley, and that the said Joseph Hall Whiteley, as guardian of his mother, approved, for his ward, a proposed settlement which is set out at length in the application. The application was presented to the court and on August 11, 1939, the judge ordered that the same be set down for hearing and determination on the 21st of August, 1939, at 1:30 o'clock, and ordered that notice of hearing be served on the heirs of said estate or their legal representatives by personal service, or by acceptance of service by said heirs or their legal representatives at least five days prior to said hearing.
A notice was prepared in which administratrix represented that the personal property of said estate was not sufficient to pay the debts and alleged the necessity of selling the real estate, and asked that she be authorized and directed to sell real estate and the personal property. She further stated that Phil S. Whiteley and the decedent were partners in business during the life of said decedent under the firm name of J. W. Whiteley & Sons, and that said partnership is heavily in debt; that said indebtedness is far in excess of the value of the property of said partnership; that the said Phil S. Whiteley, surviving partner of said partnership, has offered to assume said indebtedness and hold this estate and the heirs thereof harmless from said debts in consideration of the full and complete transfer to him of all the remaining property of said estate both real and personal, and asking that the court authorize and direct her to accept said offer and make good and sufficient conveyances of said property to said purchaser.
Acceptance of service of said notice was as follows:
On the 23rd of August, 1939, A. L. Heminger, an attorney of Keosauqua, was appointed guardian ad litem of Emma H. Whiteley, and filed answer. On the same day was filed order authorizing the sale of real and personal property, which found that the indebtedness of the estate was in excess of the personal property and in excess of the reasonable value of both the personal and real estate; that it was necessary to sell the real estate and personal property for the purpose of paying the indebtedness, and that the only creditors of said estate and the general creditors are those having third-class claims. The court further found that all the heirs and the surviving spouse, naming them, have accepted service of the notice of hearing on the application, which acceptances are on file and no objections to the application have been filed. The court found that it had jurisdiction of the subject matter and appointed the guardian ad litem. The court further found that 'decedent was a member of the partnership with his brother, (Phil S. Whiteley) who is the surviving partner; that said Phil S. Whiteley had submitted an offer to purchase all the property remaining and assuming the indebtedness and holding the heirs harmless from any liability, and that he would pay the executrix sufficient cash to pay the cost of the administration, including the attorneys fees and executrix fees; that the said offer was fair and reasonable and for the best interest of the estate, and a liberal valuation on said property,' and the court found it unnecessary to appraise the property.
The court specifically found that said report and application should be approved and said offer of purchase accepted, and that authority for the executrix de bonis non to sell said property, and the mercantile business, and the personal property should be given,--the interest of the estate being one-half of the property enumerated. Deeds and bill of sale accordingly were submitted to the court and approved on September 5, 1939. Thereafter, the final report of the administratrix de bonis non was approved, and the administratrix discharged, and the estate closed on November 11, 1940.
The present case is an action of partition begun by the above mentioned Joseph Hall Whiteley, plaintiff. His mother, Emma Hall Whiteley, and widow of Joseph Giles Whiteley, died intestate on October 13, 1941, and left as heirs the plaintiff and his brother, Philip Wade Whiteley. Philip Wade Whiteley and wife conveyed by quitclaim deed all his right, title and interest in the real estate to the plaintiff. Thereafter, on the 19th day of July, 1946, the plaintiff herein filed his petition alleging that he is the absolute owner by title in fee simple of the undivided half of the real estate mentioned in the preceding statement, being located in the town of Bonaparte; alleging the will of his father, reciting that the defendants named claimed some interest, inability to agree on division, and alleging that the deed of Madge J. Buckles, as executrix of plaintiff's father, Joseph Giles Whiteley, is wholly void and a cloud on plaintiff's title; that the other half of the real estate was owned by Phil S. Whiteley who, on his death in 1942, devised the real estate to Thurlo J. Mills, and who conveyed to the other defendants named. He makes the usual prayer in the petition for the establishment of his title, for the sale of the real estate and division of proceeds, and that the deed made by Madge J. Buckles be set aside insofar as it attempted to convey the interest in plaintiff's undivided half of the real estate. There was an answer of all defendants, Division I being a general denial, and the denial that the deed from which they derived title was void or constitutes a cloud and should be set aside.
In Division II of the answer the defendants refer to the proceedings, as have heretofore been stated, relative to the executrix' deeds. In Division III defendants plead the statute of limitations in section 635.40 of the 1946 Code, in that plaintiff is attempting to bring an action for recovery of real estate, claiming under a deceased more than five years...
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